HR Pulse

External experts can chair disciplinary hearings

There is a serious misconception that employers aren’t allowed to get external experts to chair disciplinary hearings. It’s true that such experts might, under certain circumstances, not be allowed to represent the employer (or the employee). However, the person chairing the disciplinary hearing isn’t representing either of the parties. In other words, the chairperson isn’t the employee’s or employer’s representative. Instead, the chairperson is there to gather the facts both parties provide and to make a fair decision.

In the case of Khula Enterprise Finance Limited vs Madinane and others (2004, 4 BLLR 366), the Labour Court found that it wasn’t unfair for an external legal expert to chair a disciplinary hearing.

Not only is it perfectly fair and legal for an external expert to be asked to chair a disciplinary hearing, it’s also desirable because:

• An external person will be less susceptible to being influenced by the parties than an internal chairperson would be.
• A labour law expert will have the experience and skill to run the disciplinary hearing according to the very complex requirements of the laws of evidence. Such an expert would be able to arrive at a fair decision without breaching the myriad of complex principles that the CCMA expects to be applied.

Be careful who you get to chair your disciplinary hearing

Many employers have had their dismissal decisions overturned at the CCMA not because the dismissal was considered inappropriate but because the chairperson (an internal employee or manager) wasn’t skilled in chairing disciplinary hearings.

Schedule 8 of the Labour Relations Act (LRA) says that:

• You must allow your employee to state his case in response to the allegations. In other words, he must be given the right to:
  -    An unbiased chairperson,
  -    Testify,
  -    Bring documents,
  -    Call witnesses, and
  -    Cross-examine evidence brought against him.

The question then is how can you:

    Make sure you meet these legal rights without setting up a proper enquiry with a fully skilled chairperson?
 
    Prove that you have given all of these rights to the employee without taking proper minutes?

To comply with your employee’s rights during a disciplinary hearing, and prove you’ve done this, you’ve got no choice but to:

• Use a properly skilled chairperson, and
• Set up a formal hearing and keep these records as these will become part of the evidence at the CCMA**.

In the case of Schoon vs MEC, Department of Finance (2003 Contemporary Labour Law Vol. 13 No.4 2003), the High Court of Appeal decided that the chairperson of a disciplinary hearing can’t rely on the disciplinary code alone The chairperson must also take into account the provisions of the Promotion of Administrative Justice Act 3 of 2003.

The court also decided that the employer refusing to allow the accused the right to legal representation at an internal disciplinary hearing was unconstitutional. This startling decision strongly indicates that the courts see internal disciplinary hearings as very formal processes.

Always follow procedure

When you suspect an employee of poor performance, it isn’t enough to have an informal discussion with him about the problem and then fire him the next week as the LRA sets down specific steps you need to follow before you can even think about dismissing someone for poor performance, e.g.:

• You must have given your employee enough evaluation, guidance, counselling and training.
• Even after you’ve done all this, your employee’s poor performance must have continued after he received your help to improve.
• To justify dismissing the employee, you must investigate the alleged poor performance and prove that there’s no other way of fixing the problem.

Remember that informal processes are difficult to control and prove so, to be safe, rather stick with formal processes in your disciplinary hearings.

** At the CCMA, you will need to prove you complied with legal procedures when you dismissed your employee.

Ivan Israelstam is the Chief Executive Officer of Labour Law Management Consulting. He is known as a leading practitioner in labour law and pragmatic labour relations management with many years experience in corporate human resources management. He has an honours degree from The University of the Witwatersrand and an IPM diploma in Personnel Management and in Training. Contact Ivan: This e-mail address is being protected from spambots. You need JavaScript enabled to view it. .